Citation Nr: 0433433
Decision Date: 12/17/04 Archive Date: 12/21/04
DOCKET NO. 03-02 430 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to an increased disability rating for a service-
connected left wrist disability, currently evaluated as 30
percent disabling.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
L. Cramp, Associate Counsel
INTRODUCTION
This case comes before the Board of Veterans Appeals (the
Board) on appeal from an April 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Chicago, Illinois (the RO).
Procedural history
The veteran served on active duty in the United States Marine
Corps from August 1943 to March 1945. He was wounded in
action on Saipan in July 1944.
The veteran was granted service connection for a gunshot
wound to the left wrist in an April 1945 rating decision; a
10 percent disability rating was assigned. In a May 1948
rating decision, the disability rating was increased to 20
percent and in a September 1995 rating decision the
disability rating was increased to 30 percent.
In August 2001, the RO received the veteran's claim of
entitlement to an increase in the disability rating assigned
his left wrist disability. In an April 2002 rating decision,
the RO denied the claim. The veteran disagreed with the
April 2002 rating decision and initiated this appeal. The
appeal was perfected with the timely submission of the
veteran's substantive appeal (VA Form 9) in January 2003.
In connection with his appeal the veteran testified at a
videoconference hearing which was chaired by the undersigned
Veterans law Judge in May 2004, and accepted such hearing in
lieu of an in-person hearing. See 38 C.F.R. § 20.700(e)
(2004). A transcript of the hearing is associated with the
veteran's VA claims folder.
FINDING OF FACT
The veteran's service-connected left wrist disability is
manifested by complaints of limited motion associated with
pain, weakness and swelling. Objective clinical findings
include severe arthritis of the left wrist; range of
dorsiflexion to 10 degrees, ulnar deviation to 5 degrees, and
radial deviation to neutral. The veteran has significantly
diminished grip strength and atrophy of the left wrist
muscles.
CONCLUSION OF LAW
The criteria for a 40 percent disability rating for the
veteran's service-connected left disability have been met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic
Code 5214 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran is seeking entitlement to an increased disability
rating for his service-connected residuals of a gunshot wound
to the left wrist.
In the interest of clarity, the Board will initially discuss
certain preliminary matters. The Board will then address the
pertinent law and regulations and their application to the
facts and evidence.
The Veterans Claims Assistance Act of 2000
The Board has given consideration to the provisions of the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000) (VCAA) [codified as amended at 38
U.S.C.A. §§ 5102, 5103, 5103A, 5107) (West 2002)]. This law
eliminated the former statutory requirement that claims be
well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991).
The VCAA includes an enhanced duty on the part of VA to
notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. The VCAA
also redefines the obligations of VA with respect to its
statutory duty to assist claimants in the development of
their claims. Regulations implementing the VCAA have been
enacted. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) [to be
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a)].
Except for provisions pertaining to claims to reopen based on
the submission of new and material evidence, the VCAA is
applicable to all claims filed on or after the date of
enactment, November 9, 2000, or filed before the date of
enactment but not yet final as of that date. The provisions
of the VCAA and the implementing regulations are,
accordingly, applicable to this case. See Holliday v.
Principi, 14 Vet. App. 282-83 (2001) [the Board must make a
determination as to the applicability of the various
provisions of the VCAA to a particular claim].
The Board has carefully considered the provisions of the VCAA
and the implementing regulations in light of the record on
appeal, and for reasons expressed immediately below finds
that the development of this issue has proceeded in
accordance with the provisions of the law and regulations.
As stated above, the VCAA alters the legal landscape in three
distinct ways: standard of review, notice and duty to assist.
The Board will now address these concepts within the context
of the circumstances presented in this case.
Standard of review
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. 38 U.S.C.A. §
7104(a) (West 2002). When there is an approximate balance of
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2004)
[reasonable doubt to be resolved in veteran's favor]. In
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United
States Court of Appeals for Veterans Claims (the Court)
stated that "a veteran need only demonstrate that there is an
'approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
preponderance of the evidence must be against the claim. See
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.
Duty to notify
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also
Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter
from VA to an appellant describing evidence potentially
helpful to the appellant but not mentioning who is
responsible for obtaining such evidence did not meet the
standard erected by the VCAA].
To comply with the aforementioned VCAA requirements, the RO
must satisfy the following four requirements.
First, the RO must inform the claimant of the information and
evidence not of record that is necessary to substantiate the
claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR §
3.159(b)(1) (2004). The Board observes that the veteran was
notified by the August 2002 rating decision, by the December
2002 statement of the case (SOC), and by the February 2003
supplemental statement of the case (SSOC) of the pertinent
law and regulations, of the need to submit additional
evidence on his claim, and of the particular deficiencies in
the evidence with respect to his claim. More significantly,
two letters were sent to the veteran in August 2001 and in
January 2002, with copies to his representative, which were
specifically intended to address the requirements of the
VCAA. Those letters explained in detail the elements that
must be established in order to warrant an increased
disability rating, they enumerated the evidence already
received, and they provided a description of the evidence
still needed to establish those elements.
Second, the RO must inform the claimant of the information
and evidence VA will seek to provide. See 38 U.S.C.A. § 5103
(West 2002); 38 CFR § 3.159(b)(1) (2004). In the August 2001
and January 2002 VCAA letters, the RO informed the veteran
that "We will make reasonable efforts to help you get
evidence necessary to support your claim. We will try to
help you get such things as medical records, employment
records, or records from other Federal agencies." The
letters also informed the veteran that VA would arrange for
an examination of the veteran, if deemed necessary.
Third, the RO must inform the claimant of the information and
evidence the claimant is expected to provide. See 38
U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2004).
The August 2001 and January 2002 letters told the veteran to
send the RO "the name of the person, agency, or company who
has records that you think will help us decide your claim;
the address of this person, agency, or company; the
approximate time frame covered by the records; and the
condition for which you were treated, in the case of medical
records. If there are private medical records that would
support your claim, you can complete, sign and return
enclosed VA Form 21-4142, Authorization for Release
Information, and we will request those records for you."
Finally, the RO must request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR §
3.159(b)(1) (2004). Even though the August 2001 and January
2002 letters did not specifically request that the veteran
provide "any evidence in [his] possession that pertains to
the claim" (as stated in 38 C.F.R. § 3.159 (b)), they did
request that he "tell us about any additional information or
evidence that you want us to try to get for you." The Board
believes that this request substantially complies with the
requirements of 38 C.F.R. § 3.159 (b) in that it informed the
veteran that he could submit or identify evidence other than
what was specifically requested by the RO.
The Board finds that the August 2001 and January 2002 letters
properly notified the veteran and his representative of the
information, and medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate
the claim, and properly indicated which portion of that
information and evidence is to be provided by the veteran and
which portion the Secretary would attempt to obtain on behalf
of the veteran. The Board notes that, even though the
letters requested a response within 60 and 30 days
respectively, they also expressly notified the veteran that
he had one year to submit the requested information and/or
evidence, in compliance with 38 U.S.C.A. § 5103(b) [evidence
must be received by the Secretary within one year from the
date notice is sent]. The one year period has since expired.
Based on this procedural history, the Board finds that the
veteran was notified properly of his statutory rights.
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2004).
The Board finds that reasonable efforts have been made to
assist the veteran in obtaining evidence necessary to
substantiate his claim, and that there is no reasonable
possibility that further assistance would aid in
substantiating it.
In particular, the RO obtained the veteran's service medical
records and VA outpatient treatment records. The veteran has
been afforded a VA examination in April 2002 to evaluate his
left wrist symptomatology. Previous VA examination reports
are also of record. The veteran has submitted private
medical evidence and has not indicated that there is any
additional evidence that has a bearing on this case that has
not been obtained. The Board notes that all of the evidence
listed on the March 2004 VA Form 646 as being pertinent to
claim is of record.
The Board notes that the veteran submitted medical evidence
at his May 2004 hearing and included a waiver of initial RO
consideration of that evidence.
See 38 C.F.R. § 20.1304 (2004). In any event, that evidence
was already in the claims folder and had been considered by
the RO.
The veteran and his representative have been accorded ample
opportunity to present evidence and argument in support of
his appeal. The veteran was afforded a personal hearing in
May 2004 via videoconference before the undersigned Veterans
Law Judge, the transcript of which is of record.
In short, the Board has carefully considered the provisions
of the VCAA in light of the record on appeal, and for the
reasons expressed above finds that the development of the
claim has been consistent with the provisions of the new law.
Under these circumstances, the Board can identify no further
development that would avail the veteran or aid the Board's
inquiry. Accordingly, the Board will proceed to a decision
on the merits.
Pertinent law and regulations
Increased disability ratings - in general
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4 (2004). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 3.321(a), 4.1 (2004) [general rating considerations;
essentials of evaluative ratings].
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2004) [higher of two
evaluations].
It is not expected, especially with the more fully described
grades of disabilities, that all cases will show all the
findings specified; findings sufficiently characteristic to
identify the disease and the disability therefrom are
sufficient; and above all, a coordination of rating with
impairment of function will be expected in all cases.
38 C.F.R. § 4.21 (2004) [application of rating schedule].
Rating musculoskeletal disabilities
The Court has held that evaluation of a service-connected
disability involving a joint rated on limitation of motion
requires adequate consideration of functional loss due to
pain under 38 C.F.R. § 4.40 (2004) and functional loss due to
weakness, fatigability, incoordination or pain on movement of
a joint under 38 C.F.R. § 4.45 (2004). See, in general,
DeLuca v. Brown, 8 Vet. App. 202 (1995).
The provisions of 38 C.F.R. § 4.40 state that the disability
of the musculoskeletal system is primarily the inability, due
to damage or infection in parts of the system, to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination, and endurance. According to
this regulation, it is essential that the examination on
which ratings are based adequately portrays the anatomical
damage, and the functional loss, with respect to these
elements. In addition, the regulations state that the
functional loss may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
veteran undertaking the motion. Weakness is as important as
limitation of motion, and a part which becomes painful on use
must be regarded as seriously disabled. 38 C.F.R. § 4.40
(2004).
The provisions of 38 C.F.R. § 4.45 state that when evaluating
the joints, inquiry will be directed as to whether there is
less movement than normal, more movement than normal,
weakened movement, excess fatigability, incoordination, and
pain on movement.
The intent of the schedule is to recognize painful motion
with joint or periarticular pathology as productive of
disability. It is the intention to recognize actually
painful, unstable, or malaligned joints, due to healed
injury, as entitled to at least the minimum compensable
rating for the joint. 38 C.F.R. § 4.59 (2004).
Specific schedular criteria
The veteran was noted to be right-handed by the April 2002 VA
examiner. Accordingly, the left arm is his minor arm for
purposes of this rating.
See 38 C.F.R. § 4.69 (2002) [a distinction is made between
major (dominant) and minor musculoskeletal groups for rating
purposes, and only one extremity is to be considered major].
Diagnostic Code 5214 [Wrist, ankylosis of] provides the
following levels of disability for the minor appendage:
40 % Unfavorable, in any degree of palmar flexion, or
with ulnar or radial deviation;
30% Any other position, except favorable;
20% Favorable in 20[degrees] to 30[degrees] dorsiflexion
Note: Extremely unfavorable ankylosis will be rated as loss
of use of hands under diagnostic code 5125.
Diagnostic Code 5215 [Wrist, limitation of motion of]
provides the following levels of disability for the minor
appendage:
10% Dorsiflexion less than 15[degrees];
10% Palmar flexion limited in line with forearm.
Analysis
The veteran is seeking an increased disability rating for his
service-connected left wrist disability, which is currently
evaluated as 30 percent disabling under 38 C.F.R. § 4.71a,
Diagnostic Code 5214 (2004). He essentially contends that
the symptomatology associated with the left wrist disability
is more severe than is contemplated by the currently assigned
rating.
Assignment of diagnostic code
The assignment of a particular diagnostic code is "completely
dependent on the facts of a particular case." Butts v.
Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may
be more appropriate than another based on such factors as an
individual's relevant medical history, the diagnosis and
demonstrated symptomatology. Any change in a diagnostic code
by a VA adjudicator must be specifically explained. Pernorio
v. Derwinski, 2 Vet. App. 625, 629 (1992).
By the veteran's account, the principal manifestations of his
left wrist disability are limitation of motion, with pain,
weakness and swelling. The veteran has consistently pointed
to pain as his primary complaint. In June 2001 claim, he
descried his pain as "severe." At his May 2004 hearing,
the veteran described symptoms of pain and swelling.
Such symptoms have been confirmed on objective examination.
The April 2002 examiner noted that the veteran's complaints
include "predominantly pain." In addition, both the April
2002 VA examiner and Dr. J.M.B. have diagnosed degenerative
changes of the wrist and contiguous joints, and Dr. J.M.B.
related the arthritis to the service-connected gunshot wound.
Based on such complaints and objective findings, the Board
finds that Diagnostic Code 5214 [wrist ankylosis] appears to
most closely match the evidence and reported symptomatology
with respect to the veteran's left wrist disability.
Diagnostic Code 5215 deals with limitation of motion of the
wrist, but allows a maximum 10 percent rating. A higher
rating is therefore not available under that code.
Diagnostic Codes 5307, 5308, 5309 deal with muscle injuries
to the hand, not the wrist and the maximum disability rating
available under those codes is only 30 percent. Thus, a
higher rating is not available on that basis.
As noted above, there is medical evidence of arthritis
associated with the veteran's service connected disability.
However, Diagnostic Code 5003 [arthritis, degenerative] rates
by analogy to limitation of motion of the joint affected,
i.e. the already assigned Diagnostic Code 5214.
The Board has considered whether an evaluation on the basis
of neurological injury is appropriate. However, there is no
medical evidence of any neurological problems. The veteran's
private physician, Dr. J.M.B., in February 2002 found no
neurological deficit of the left wrist.
Accordingly, for the reasons discussed, the Board finds that
Diagnostic Code 5214 is the most appropriate as to this issue
and the Board will apply it below.
Schedular rating
A request for an increased rating must be viewed in light of
the entire relevant medical history. See 38 C.F.R. §§ 4.1,
4.41 (2004) [history of injury]; Peyton v. Derwinski, 1 Vet.
App. 282, 287 (1991). However, where entitlement to
compensation has already been established and an increase in
the disability rating is at issue, the present level of
disability is of primary concern. Francisco v. Brown, 7 Vet.
App. 55, 58 (1994).
The Board has reviewed the evidence of record, and for
reasons which will be expressed in greater detail below, the
Board finds that the veteran's overall level of
symptomatology is consistent with that enumerated for a 40
percent rating. This finding is based on the 30 percent
schedular rating for limitation of motion of the left wrist,
and an additional 10 percent rating for pain, weakness, and
swelling associated with motion. The Board will first
address the appropriate schedular rating, and will then
proceed to address the additional compensation for pain on
motion in the Deluca section below.
With respect to a rating under Diagnostic Code 5214, the
Board finds that the veteran is appropriately rated at the 30
percent level, approximating ankylosis of the left wrist at a
position that is neither favorable nor unfavorable.
Ankylosis is defined as "[s]tiffening or fixation of a joint
as the result of a disease process, with fibrous or bony
union across the joint." See Dinsay v. Brown, 9 Vet. App.
79, 81 (1996) (citing Stedman's Medical Dictionary 87 (25th
ed. 1990).
A 40 percent rating under Diagnostic Code 5214 is appropriate
only where the wrist is ankylosed in an unfavorable position,
i.e., in any degree of palmar flexion, or with ulnar or
radial deviation. Such is not shown or approximated by the
evidence of record, and the veteran does not contend that
such is the case. The February 2002 evaluation of Dr. J.MB.
shows that the veteran had up to 10 degrees of dorsal flexion
and had 5 degrees of ulnar deviation, and was able to attain
the neutral position with respect to radial deviation. The
findings of the April 2002 VA examiner show radial deviation
of 5 degrees; ulnar deviation of 30 degrees; flexion of 65
degrees; and extension of 45 degrees. There is no evidence
of unfavorable ankylosis. Thus, the criteria for a 40
percent schedular rating are not approximated.
The Board's inquiry is not necessarily strictly limited to
the criteria found in the VA rating schedule. See Mauerhan
v. Principi, 16 Vet. App. 436 (2002) [the criteria set forth
in the rating formula for mental disorders do not constitute
an exhaustive list of symptoms, but rather are examples of
the type and degree of the symptoms, or their effects, that
would justify a particular rating]. However, the Board has
identified no symptomatology or other aspect of the veteran's
service-connected left wrist disability which would enable it
to conclude that the criteria for unfavorable ankylosis are
approximated, and the veteran and his representative have
pointed to no such pathology.
In that connection, the Board notes that Dr. J.M.B. described
"severe degenerative changes" which create a "significant
amount of disability" with respect to the veteran's left
wrist. However, the rating criteria for arthritis do not
encompass "severe degeneration", nor does "significant
impairment" correspond to any particular disability rating.
The rating criteria under Diagnostic Code 5214 provide
specific descriptions of symptomatology that corresponds to a
particular rating and do not incorporate estimations as to
overall level of severity. See Massey v. Brown, 7 Vet. App.
204, 208 (1994) [the Board's consideration of factors which
are wholly outside the rating criteria provided by the
regulations is error as a matter of law].
Based on the objective medical evidence of record, the Board
finds that a 30 percent rating is the most appropriate under
Diagnostic Code 5214. Dr. J.M.B.'s findings show that the
veteran cannot attain a position that would qualify as
"favorable." Favorable ankylosis is defined for purposes
of the 20 percent level as a position from 20 degrees to 30
degrees of dorsiflexion. As noted above, Dr. J.M.B. found
that the veteran could not attain more than 10 degrees of
dorsal flexion. Therefore, while not in an unfavorable
position, his wrist is maintained in a position other than
favorable, which meets the requirements for a 30 percent
rating, and no more under Diagnostic Code 5214.
The Board concedes that the veteran does have some movement
of his left wrist. This may not meet the strict definition
of ankylosis, at least as defined in Dinsay, above. However,
in finding that the veteran's symptoms approximate ankylosis,
the Board notes the repeated reference in the medical
evidence to possible fusion surgery to alleviate the
veteran's symptoms. It appears, as noted by Dr. J.M.B., that
the primary reason a fusion procedure is not recommended for
this veteran is his advanced age. Indeed, Dr. J.M.B.
recommended, as an alternative, a brace that limits the
mobility of the wrist and mimics a fusion. Considering this
evidence, the Board finds that, while there is technically no
ankylosis of the left wrist, ankylosis in a position that is
neither favorable nor unfavorable is clearly approximated by
the evidence of record.
The Board also concedes that the findings of the April 2002
VA examiner show somewhat less symptomatology that that
reported by Dr. J.M.B. However, the Board can identify no
reason to discount the findings of Dr. J.M.B. or to favor
those of the VA examiner. The examinations were conducted at
approximately the same time, and both examinations appear to
be thorough. In such circumstances as this where the
evidence for and against an element of the claim is in
approximate balance, the benefit of the doubt goes to the
veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R.
§§ 3.102, 4.3 (2004) [reasonable doubt to be resolved in
veteran's favor]; Gilbert, 1 Vet. App. at 53.
In summary, the Board finds that the schedular criteria for a
30 percent disability rating are approximated and that a
rating higher than 30 percent is not warranted.
De Luca considerations
The Board notes that the veteran has consistently pointed to
symptoms such as pain and weakness as his primary complaints
with respect to his left wrist. The Board must therefore
address the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59,
which have been discussed above. See DeLuca, supra.
With respect to weakness, it appears that there is again some
conflicting evidence. The April 2002 VA examiner described 5
out of 5 motor strength with hand grasp, wrist flexion, and
wrist extension, bilaterally. However, Dr. J.M.B. found that
the veteran's left grip strength was significantly diminished
compared to the right. Pincer grasp was also significantly
diminished in strength. The findings of the July 1995 VA
examiner appear to support Dr. J.M.B.'s findings as to
weakness. The July 1995 examiner noted some atrophy of the
wrist muscles and found the muscles of the left wrist to be
"greatly weaker" when compared to the right. This finding
clearly contradicts the 5 out of 5 motor strength reported by
the VA examiner in April 2002, and is consistent with Dr.
J.M.B.'s findings.
In addition, the Board notes that the veteran has reported a
contracture of the fingers of his left hand, especially in
the morning. At a July 1995 RO hearing, the veteran stated
that he has to massage his hand under warm water each morning
before he is able to flex the fingers. The veteran also
submitted photographs of his left wrist showing a protrusion
or swelling at the site of the injury, making the left wrist
appear larger than the right. This discrepancy in size was
personally witnessed by the undersigned at the May 2004
hearing. Based on these findings, the Board concludes that
there is additional disability of the veteran's left wrist
that is not adequately compensated by the rating applied
above for ankylosis. Accordingly, an additional 10 percent
disability rating is warranted under the provisions of
38 C.F.R. §§ 4.40, 4.45 (2004) and DeLuca.
Esteban considerations
The Board has also explored the possibility of whether there
disabilities arising from the veteran's gunshot wound to the
left wrist that should be separately rated. Under VA
regulations, separate disabilities arising from a single
disease entity are to be rated separately. See 38 C.F.R. §
4.25 (2004); see also Esteban v. Brown, 6 Vet. App. 259,
261(1994). However, the evaluation of the same disability
under various diagnoses is to be avoided. 38 C.F.R. § 4.14
(2004); Fanning v. Brown, 4 Vet. App. 225 (1993).
In this case, the Board does not believe that a separate
disability rating can be assigned the veteran's muscle and
bone injuries without violating the prohibition against
pyramiding. The disability rating assigned above
specifically contemplates the limited motion and pain
resulting from the bone and joint injury, as well as the
weakness and pain resulting from the muscle injury. Rating
such symptoms separately would be to improperly evaluate the
same disability under different diagnoses.
The April 2002 VA examiner noted a 1 x 0.25 cm invaginated
linear scar that is clean, dry, and intact, without erythema
or tenderness to palpation. The depression is approximately
0.25 cm in greatest depth. Based on these findings, a
compensable disability rating is not warranted for scarring
under 38 C.F.R. § 4.118. Accordingly, the Board can identify
no basis on which to assign a separate disability rating for
any aspect of the veteran's left wrist disability.
Extraschedular rating
In the April 2002 rating decision, and in the December 2002
SOC, the RO concluded that an extraschedular evaluation was
not warranted for the veteran's service connected left wrist
disability. Since this matter has been adjudicated by the
RO, the Board will consider the provisions of 38 C.F.R. §
3.321(b)(1) (2004). See also VAOPGCPREC 6-96.
Ordinarily, the VA Schedule will apply unless there are
exceptional or unusual factors which would render application
of the schedule impractical. See Fisher v. Principi, 4 Vet.
App. 57, 60 (1993). According to the regulation, an
extraschedular disability rating is warranted upon a finding
that the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization that would render impractical the application
of the regular schedular standards. 38 C.F.R. § 3.321(b)(1)
(2004).
The veteran has not identified any factors which may be
considered to be exceptional or unusual, and the Board has
been similarly unsuccessful. An exceptional case is said to
include such factors as marked interference with employment
or frequent periods of hospitalization as to render
impracticable the application of the regular schedular
standards. Fanning, 4 Vet. App. at 229.
With respect to occupational interference, the veteran stated
at a July 1995 hearing that he has been retired since 1992.
There is no indication that the veteran's retirement was due
to his World War II injury. There is no evidence of any
hospitalization for problems with the left wrist during the
period on appeal. There is no evidence of an extraordinary
clinical picture, such as repeated surgery for the wrist.
While Dr. J.M.B. described surgery as an option, it was not
recommended due to the veteran's advanced age. The Board has
been unable to identify any other factor consistent with an
exceptional or unusual disability picture, and the veteran
has pointed to none.
In short, a preponderance of the evidence supports the
proposition that the veteran's service-connected left wrist
disability does not present such an exceptional or unusual
disability picture as to render impractical the application
of the regular schedular standards so as to warrant the
assignment of an extraschedular rating under 38 C.F.R. §
3.321(b)(1) (2004). Accordingly, an extraschedular
evaluation is not warranted.
Conclusion
In summary, for the reasons and bases expressed above, the
Board has concluded that the evidence supports the veteran's
claim of entitlement to an increased rating for his service-
connected left wrist disorder. To the extent of a 40 percent
disability rating, the benefit sought on appeal is
accordingly granted.
ORDER
Entitlement to an increased evaluation of 40 percent for the
veteran's service-connected left wrist disability is granted,
subject to controlling regulations applicable to the payment
of monetary benefits.
____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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